MOHAMMAD ASTAM KHAN Vs. FEROZE SHAH

JUDGEMENT

(1.) This is an appeal by special leave from a judgment and decree of the Judicial Commissioner of the North West Frontier Province, dated 18 January 1930, amending a decree dated 11 November 1925, as well as from the decree as amended and the subsequent order dated 2G June, 1930, in execution granting mesne profits to the plaintiff-respondent.

(2.) The suit was brought on 12 May 1922 by the plaintiff, K. S. Mian Feroze Shah in the first instance against Mohammad Afzal Khan praying for a decree for possession of certain lands in the villages of Ahmadabad and Narai by specific performance of an alleged agreement dated 1 May 1921 by means of the execution and registration of a sale deed and for the recovery of the sum of Rs. 4,520 and for such other and further relief as the Court might deem equitable.

(3.) The defendant, Mohammad Afzal, pleaded in his written statement, among other pleas, that he had parted with his rights and possession in the lands in the said village of Ahmadabad to M. Aslam Khan, Mt. Khaperai and Mt. Mashala. Consequently the three last named persons were added as defendants. They are the appellants in this appeal, and they will hereinafter be referred to as the appellants. Attar Singh, who was alleged to be a mortgagee, was added as a defendant, but it appears that the District Judge decided not to deal with the rights of the alleged mortgagee but to confine his decision to the case against the appellants. The alleged mortgagee has not been represented in this appeal and no question as to his rights has been raised before their Lordships. The learned District Judge of Peshawar decided that the plaintiff was not entitled to specific performance of the alleged contract but that he was entitled to recover from the defendant Mohammad Afzal the sum of Rs. 53,900, which he held the defendant Mohammad Afzal had borrowed from the plaintiff.